U.S. v. Whittington

• Decision Date: 08 June 1994
• Docket Number: Nos. 92-5693,s. 92-5693
• Citation: 26 F.3d 456
• Parties: 40 Fed. R. Evid. Serv. 1172 UNITED STATES of America, Plaintiff-Appellee, v. Jim WHITTINGTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel ATWOOD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Claudette COLLIER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Riley FERGUSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Barbara June STEVENS, Defendant-Appellant. to 92-5696, and 93-5066.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 456

26 F.3d 456

40 Fed. R. Evid. Serv. 1172

UNITED STATES of America, Plaintiff-Appellee, v. Jim WHITTINGTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Daniel ATWOOD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Claudette COLLIER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Riley FERGUSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Barbara June STEVENS, Defendant-Appellant.

Nos. 92-5693 to 92-5696, and 93-5066.

United States Court of Appeals Fourth Circuit.

Argued July 29, 1993.

Decided June 8, 1994.

ARGUED: Trawick Hamilton Stubbs, Jr., New Bern, NC, Mark H. Rubenstein, Pittsburgh, PA, Edwin Chrisco Walker, Office of the Public Defender, Raleigh, NC, Edward Keen Lassiter, Greenville, NC, Charles Christopher Henderson, Trenton, NC, for appellants. William Dial Delahoyde, Asst. U.S. Attorney/Deputy Chief, Crim. Div., Raleigh, NC, for appellee. ON BRIEF: James M. Ayers, II, New Bern, NC, Samuel T. Currin, Raleigh, NC, for appellants. James R. Dedrick, U.S. Atty., Raleigh, NC, for appellee.

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

Affirmed in part and reversed and remanded in part by published opinion. Judge RUSSELL wrote the opinion, in which Judge HALL joined. Judge WIDENER wrote an opinion concurring in part and dissenting in part.

OPINION

DONALD RUSSELL, Circuit Judge:

A jury convicted appellants James Whittington ("Whittington"), Daniel Atwood ("Atwood"), Claudette Collier ("Collier"), Riley Ferguson ("Ferguson"), and Barbara Stevens ("Stevens") on charges that they defrauded Valeria Lust ("Lust"), a widow from Lakeland, Florida, of virtually all her assets. We reverse Collier's conviction for interstate transportation of stolen property but otherwise affirm all the judgments of conviction entered by the district court.

I.

A twelve-count superseding indictment charged all appellants in this case with conspiracy to defraud Lust of her assets in violation of 18 U.S.C. Sec. 371. Additionally, the indictment charged Collier, Stevens, Whittington and Atwood with various counts of interstate transportation of stolen property, and aiding and abetting the same, in contravention of 18 U.S.C. Secs. 2314, 2; Whittington and Stevens with mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. Secs. 1341, 2; Whittington with wire fraud in violation of 18 U.S.C. Sec. 1343; and Whittington and Atwood with money laundering and aiding and abetting money laundering in violation of 18 U.S.C. Secs. 1956, 2.

The evidence adduced at trial paints the following picture. By 1986, Lust, who had a reputation for frugality, had accumulated assets of approximately $900,000.00. She owned bond accounts with Waddell & Reed in Kansas City, Missouri, valued at almost $700,000, a mortgage receivable worth $42,000, and a home valued at $34,500. Her checking account at First Florida Bank had a balance of $143,000.

In 1986, Lust, whose physical ailments left her unable to walk, hired Joan Fortune ("Fortune") to serve as her 24-hour nurse. Fortune purchased food and paid bills for Lust. Lust carefully reviewed each transaction and kept meticulous records in her checkbook.

In January of 1987, Lust underwent a thyroid operation and was prescribed valium to help her sleep. Later that month, Fortune informed Lust that she would be leaving her position. Lust advertised for a replacement. Stevens applied for the position, and Lust hired her.

Before she moved in with Lust, Stevens lived with her paraplegic daughter Melanie Milling ("Milling"). They were supported by Milling's social security benefits. While living with Milling, Stevens regularly attended religious revival services conducted by Fountain of Life, Inc. ("FOLI"), a Greenville, North Carolina, ministry. Whittington, who founded FOLI, served as its president. Stevens befriended Whittington, Atwood, and Collier while serving as a member of the Board of Directors of Miracle Cathedral, Inc. ("Miracle"), another religious ministry, located in Florida. Atwood, a friend and associate of Whittington, was the pastor of Miracle Cathedral Church in Highland City, Florida. Collier was a notary public certified by the state of Florida and worked as Atwood's part-time secretary.

During the fall of 1986, Stevens founded Dove of Love Ministries ("Dove") with the help of a friend, Erlene Slama ("Slama"). After promoting and holding a poorly attended revival service in Lakeland, Stevens indicated to Slama that she planned to obtain a motor home and travel from city to city in the service of God. She requested that Slama join her, but Slama refused.

Shortly after Stevens began working for Lust, Stevens and Lust began to visit motor home dealerships. Milling testified that Stevens had threatened that if Lust did not purchase a motor home, Stevens would put her in a nursing home where Lust would be ill-treated.

In early February 1987, Stevens visited a motor home dealership in Lakeland. Stevens returned to the dealership with Lust on February 16, 1987, at which time Lust wrote a check for $55,732.00 in order to purchase the largest and most expensive motor home for sale at the dealership. Prior to delivery, the dealership had to undertake certain preparatory steps. During the period in which these steps were being undertaken, Stevens, Whittington and Atwood visited the dealership, and took the motor home Lust had purchased for a test drive, with Whittington at the wheel.

The purported purpose of the motor home was to take Lust on trips, including trips during which Lust would receive therapy for her ailing legs. Indeed, around the time of this purchase, Lust appeared to her banker and long-time friend, Frances Hernbrott, to be in lively spirits and excited about using the motor home to travel. Following delivery of the motor home, however, Stevens telephoned Slama and stated, " 'I have a motor home, come over and see it.' " J.A. 343. Slama accepted this invitation. Soon thereafter, Stevens again telephoned Slama, this time to tell her to watch FOLI's television program on a local station because she (Stevens) was to appear. During the program, Whittington, who was featured, said, " 'I want you to see how God can bless you.' " J.A. 344. He then provided the microphone to Stevens, who said, " 'God has given me a motor home in my name, a sixty-five thousand dollar motor home, in my name, it's mine.' " J.A. 345.

Slama also witnessed Stevens wave $6,000 worth of Lust's monthly interest checks, saying, " 'I can use this money for my ministry, Ms. Lust does not need it.' " J.A. 346. Later, Stevens also boasted to Slama that she would get the entire principal upon which the $6,000 was interest.

Also in February 1987, at Stevens' request, a broker from E. F. Hutton paid several visits to Lust to discuss possible changes in Lust's investment structure. Distribution forms were sent to Waddell & Reed to liquidate Lust's bond accounts. These transactions were not completed, but, in the exercise, Stevens was able to apprise herself of the amounts in Lust's accounts, their locations and the process necessary to complete a liquidation.

In late February 1987, large checks began to be written on Lust's checking account payable to Dove and FOLI. The first of these checks was dated February 23, 1987, one week after the purchase of the motor home, and was made payable to Dove in the amount of $20,000.00. Although the check appears to bear her signature, Lust denies authorizing the check or intending to give such a sum to Stevens or Dove. Subsequent checks, payable to FOLI and Stevens, for large sums of money were written on Lust's account through March. ¹ These checks were prepared in Stevens' handwriting, with the exception of what appears to be Lust's signature. Lust, however, denies having authorized any of these checks or having had any intention thus to distribute her money.

A letter dated March 25, 1987, scripted by Stevens and signed by Lust, requested that Waddell & Reed liquidate Lust's bond accounts and send Lust a check for the value of the accounts. Included with the letter were official forms requesting liquidation which were signed by Lust and dated March 10, 1987. Waddell & Reed complied with the liquidation request and, on April 1, 1987, sent eight checks to Lust by overnight mail. Lust never saw these checks.

At around this same time, various documents that purported to dispose of Lust's assets were executed. On April 3, 1987, a document assigning to Stevens Lust's power of attorney was executed. This document was notarized by Collier and Lust's signature was witnessed by Ferguson. On this same date, a deed transferring Lust's home to FOLI was executed. The deed was notarized by Collier and Lust's signature thereon was witnessed by Ferguson and Stevens. On April 7, 1987, the purported will of Lust was executed. The will directs that all of Lust's possessions be given to Stevens and "all liquid assets and anything that can be turned into cash" be given to FOLI. J.A. 708. The will also states: "Let it be known that I have already given the sum of $500,000 to Fountain of Life, Incorporated...." Id. Ferguson and Mary A. Loveless served as witnesses, and the will was notarized by Collier.

Testimony was adduced that Collier had previously stated to investigators that she prepared all three documents, that she had explained to Lust, who was awake and alert, their significance, and that Ferguson and Stevens were present when she notarized the documents. Slama, however, testified that Stevens admitted to having forced Lust to sign the power of attorney document, and Milling, as described below, testified that Collier admitted that Lust had been tricked into signing the power of attorney document.

Evidence was also adduced at trial to show that the propriety of the execution of at least one of these documents was questionable. Reverend Clifton Morris ("Morris"...